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Copyright of “Public Facts”: Craigslist v. PadMapper

Craigslist was meant for the common good, or as founder Craig Newmark puts it,
“doing well by doing good.” At least, that has been its announced mission since it began as an email distribution among friends.
Craigslist kept its mantra through its rise to Silicon Valley stardom,
snubbing multi-million dollar buyout offers and fighting attempts to monetize the site along the way.

The physical layout of Craigslist hasn’t changed much over the years.
Point your browser in its direction and, like an old friend, you’ll be
greeted with the same underlined blue links you’ve known for years. Fans
are legion, but so too are critics: Critics see stagnation in this
comfort, some of whom have taken matters into their own hands through
attempts at innovation. However, as some have already discovered,
developing tools to work around (critics would say “enhance”)
Craigslist’s simple functionality can invite legal response. Is an early
darling of Silicon Valley showing a decidedly uglier side, or is
Craigslist still simply looking out for the common good?

This past July, Craigslist filed a lawsuit in the US District Court, Northern District of California, alleging that apartment-hunting site PadMapper and its data exchange partner, 3Taps, unlawfully
repurpose Craigslist postings and therefore undermine “the integrity of
local Craigslist communities, ultimately harming both Craigslist and
its users.” While the complaint parallels Craigslist’s “common good”
business model, 3Taps CEO Greg Kidd sees it differently. “We believe
Craigslist is acting like a copyright troll,” Kidd recently told AllThingsD.
Kidd’s company provides PadMapper an API for data about Craigslist
postings that 3Taps gathers via means it claims are not subject to
Craigslist’s Terms of Use and that likewise do not violate Craigslist’s copyrights.

This isn’t the first time Craigslist has claimed such violations,
including several now-shuttered earlier services built on top of
Craigslist’s platform. In July 2010, Newmark took to Q&A site Quora to
defend his company’s actions in a case similar to Padmapper’s, saying
he did not take issue with sites that do not affect Craigslist’s
servers. “Actually, we take issue with only services which consume a lot
of bandwidth, it’s that simple,” Newmark wrote.

June 22:
Craigslist sends Padmapper a cease and desist letter and blocks
PadMapper from pulling CL ads (at least from doing so directly).
According to CL’s complaint (filed July 20th), traffic to Padmapper
immediately plummeted.

PadMapper claims not to siphon off Craigslist’s servers.
Through its partnership with 3Taps, PadMapper accesses a database of
Craigslist listings found and organized from search engines including
Google and Bing.

July 9: Padmapper re-launches using 3Taps data.

July 20: Craigslist sues 3Taps and Padmapper. CL claims:

Copyright infringement (for the CL site and for CL listings)

Contributory copyright infringement (against 3Taps)

Breach of contract (TOS)

Trademark infringement

Trademark dilution

Unfair trade practices

Perhaps that’s why Craigslist is now requiring users
to “expressly grant and assign to Craigslist all rights” to enforce the
copyright. Other sites like Yelp! and Facebook only require a
non-exclusive license to their users’ content. But even if courts
interpret this as a legally binding transfer of copyright to Craigslist,
facts, like those in classified listings, often cannot be copyrighted.
Therefore, it is possible that details such as an apartment’s price,
address and number of bedrooms will not be protected.

This is of course Greg Kidd’s argument.
“No Terms of Use can ride roughshod over the fact that there is no
copyright in facts,” Kidd says. “Padmapper’s use of exchange posting is
not infringing use. It is fair use or free use … of public facts.”
According to Kidd, PadMapper could just be the beginning to what could
be, “a whole class of use case conflicts if this stands.” Via this
interpretation, as Kidd sees it, “a [Craigslist] posting retweeted via
Twitter is going to be just as problematic as one through PadMapper.”

This argument inelegantly ignores 2 obstacles under contract and copyright.

Contract

First contract law, by virtue of the binding nature of Craiglist’s TOU as a contract. So, as Craigslist notes in its complaint:

[3Taps and Padmapper] regularly
accessed the CL website and affirmatively accepted and agreed to the
[TOU] to, among other things, test, design, and/or use the software that
allows Defendants to provide their services. Likewise … Defendants
regularly accessed the CL website with knowledge of the [TOU] and its
prohibitions against copying, aggregating, displaying, distributing,
performing and derivative use of the CL website and any content posted
on the CL website … and regularly access the CL website and copied,
aggregated, displayed, distributed, and made derivative use of the CL
website and the content posted therein.

3Taps disagrees: 3Taps cannot be bound by Craigslist’s TOU, since
3Taps never touches Craigslist’s servers to obtain the data it provides
via its API. Says Kidd:

The [CL] data in question is indexed
by public search engines and is made available in the public domain.
One does not have to belong to or even go to Craigslist to find this
information on the description, price, and time of availability of a
posting. The information is freely available in the public domain and is
a fundamental component of transparency of supply and demand and price
discovery that are the foundation of free markets.

Craigslist then says that 3Taps’ argument about not directly accessing data from Craigslist is absurd:

3Taps copies all of craigslist’s
content – including time stamps and unique craigslist user ID numbers –
and makes it available to third parties for use in competing websites
or, for whatever other purpose they wish. On information and belief,
3Taps is obtaining this content by improperly accessing craigslist’s
website and “scraping” content.

Copyright – Facts and Facts

Kidd’s “public domain” argument – challenging Craigslist’s private
ownership of public “facts” – has its own problems. That’s because
there are public facts and … there are public facts. For starters, what
makes an apartment listing a public fact? Arguably, an apartment listing
is a private piece of information uniquely created and formatted by a
landlord and Craigslist: How listed, what information is listed, what
pricing, etc. Perhaps not the most highly creative of copyright subject
matters protected by “original works of authorship fixed in any
tangible medium of expression” US Copyright Act (Title 17 US Code), but nonetheless protected by copyright.

No, Craigslist may not be able to protect names and addresses, but it
may be able to protect Craigslist’s particular presentation of those
names and addresses. And Craigslist makes this very point in its
complaint, claiming that 3Taps “displays craigslist’s copyrighted
content in virtually identical visual fashion to the manner in which
they appear on craigslist.”

August 1: After filing its July suit, Craigslist amends its TOU, telling users they were not permitted to cross-post their sales items anywhere else on the internet:

Clicking ‘continue’ confirms that Craigslist is the exclusive licensee
of this content, with the exclusive right to enforce copyrights against
anyone copying, republishing, distributing, or preparing derivative
works without its consent.

August 5: Craigslist instructs all general search engines to stop indexing CL postings.

August 9: CL amends its TOU – again – to remove “exclusive license” language from its TOS:

Second, Craigslist may be able to rely on copyright arguments similar
to those historically made by mapmakers and telephone book publishers,
where the compilation of otherwise public facts is itself
copyrightable. (See, for example, Feist Publications, Inc. v. Rural Telephone Service Co., 499 US 340 (1991).)
This argument, where the unique presentation, design, layout, or
formatting give a compiler a copyright edge, still gives scant
protection to the component parts, but it can give viability to a legal
claim of misappropriation.

Other Arguments – Trademark and Unfair Competition

Craigslist makes other legal arguments, including most notably
trademark infringement and dilution claims and California state law
unfair competition claims. These are subjects beyond the scope of the
present discussion, although they do seem to raise the kinds of issues
that the likes of Rockefeller Plaza in New York City deals with: Once a
year, every year, the plaza is closed to public access in order to allow
its owners to continue to assert their private ownership. Perhaps
Craigslist, too, feels some periodic necessity to remind its users that
freedom of internet use is not free.

3taps is not alleging that craigslist
acquired its widespread monopoly power improperly – far from it;
craigslist should be applauded for bringing online classifieds into the
modern age and achieving its initial dominance over various U.S. markets
for the “onboarding” (i.e., the process of inputting and uploading
factual content on the internet) of user-generated classified ads by
those seeking a personal exchange transaction for various goods and
services, including apartment rentals, jobs, personal services, general
goods, and other sales.

What 3taps is complaining about is
how craigslist has maintained (and continues to maintain) its monopoly
power in these three related markets. Certainly, craigslist has not
maintained this power by competing on the merits. Indeed, for years,
craigslist has espoused the classic principles of a monopolist that
believed it did not need to compete: a “strategy” of “unbranding,”
“demonetizing,” and “uncompeting” —the epitome of a lethargic
monopolist. And why not? As an unchallenged monopolist across these
various markets, craigslist has generated revenues somewhere between
$100-$300 million per year, and that’s without sinking any significant
costs into research and development or innovation.

Andrew Mirsky is an attorney and Principal of Mirsky & Company,
PLLC, a law firm with particular emphasis in new media, intellectual
property, technology, corporate and nonprofits. Andrew has 17 years’
experience as a business and commercial lawyer, including 5 years’
experience in company management of media and technology enterprises. Bruce Fryer, an intern with Mirsky & Company, PLLC, contributed to this post.

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